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ELCDismissedELC (Mombasa) — representative suit instituted 19th December 2013 (number not stated in judgment)· [2022] KEELC 1251 (KLR)

Masha Birya Dena & 111 others v Francis Kahindi Kalume [2022] KEELC 1251 (KLR)

Environment and Land Court
17 February 2022
2,930 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to let an outsider join an ongoing land case because her dispute involved different property and was already the subject of a separate lawsuit.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 14th October 2021 by Christine Mwende, an intended interested party, seeking leave to join a representative suit brought by 111 members of the Mtwapa Land Tenants Associations against the Defendants over Plot 742/III/MN, Mtwapa, in which the Plaintiffs sought a permanent injunction against eviction. The Applicant, proprietor of Jambo Jipya School, alleged the 9th Defendant had evicted her, demolished her premises and disobeyed status quo orders issued on 21st July 2020. The 9th Defendant opposed, arguing she had not disclosed her capacity, held no interest in the suit land, and had a separate pending suit against him (ELC Mombasa Case No. 208 of 2019) over LR MN/II/4427. The second replying affidavit was expunged as filed without leave. Framing three issues, the court set out the law on joinder under Order 1 of the Civil Procedure Rules, the natural justice basis for joinder, and the grounds for refusal. It held the Applicant failed the threshold: her plot was unrelated to the suit land, her dispute was already before the court in ELC No. 208 of 2019, her interest would be ventilated by the Plaintiffs, she did not state whether she sought to join as plaintiff or defendant, and joinder in a part-heard representative suit would delay proceedings, occasion unnecessary costs and open the floodgates. The application was dismissed without orders as to costs.

Key legal issues

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01

Legal requirements for joinder of a party / interested party

Holding

Joinder is governed by Order 1 Rules 1–25 of the Civil Procedure Rules and rests on natural justice, common questions of law or fact, and the necessity of the party for effective adjudication; the court may even join a party suo moto.

Reasoning

The court set out the principles: audi alteram partem; joinder of persons with rights to relief arising from the same transaction; and suo moto joinder of necessary parties. It drew on the Black Law Dictionary definition and the Mutunga Rules definition of an interested party as one with an identifiable stake whose interest will not otherwise be well articulated.

p. 3
02

Whether the Applicant met the threshold for joinder

Holding

She did not: the plot she occupied (LR MN/II/4427) is not the suit land (Plot 742/III/MN); her dispute with the 9th Defendant is separately litigated in ELC No. 208 of 2019; she did not state her capacity; and joinder would open the floodgates in a representative suit of 111.

Reasoning

The court found no connection between the two parcels and held the proposed relief incompatible with the existing cause of action. Joining her would add no value, risk a personal vendetta, confuse case management of a part-heard matter, and set a bad precedent by inviting all members of the association to seek joinder.

p. 3

Legal principles established

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  • Joinder of parties is discretionary and may be permitted at any stage, but will be refused where the cause of action proposed is incompatible with, or totally different from, the existing cause of action, or where no common question of law or fact arises
  • An affidavit filed without leave of court is a nullity and liable to be expunged

Court orders

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  1. 1.Expunged from the record the second Supporting Affidavit of the 9th Defendant filed on 21st January 2022 without leave of court
  2. 2.Dismissed the Notice of Motion application dated 14th October 2021 by the Intended Interested Party without orders as to costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 51
  • Civil Procedure Rules, 2010Order 1 Rules 1 to 25; Order 1 Rule 10; Order 7 Rule 9
  • Civil Procedure Act, Cap. 21Section 3A
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)Rule 2

Cases cited (2)

  • John Harun Mwau v. Simeone Haysom & 2 Others, AG
    HCCC Civil Suit No. 115 of 2019 (2021) eKLR
  • Lucy Nangari Ngigi & 128 Others v. National Bank of Kenya Limited & Another
    (2015) eKLR
Jurisdiction invoked
Order 51 of the Civil Procedure Rules 2010 and Section 3A of the Civil Procedure Act, Cap. 21

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Masha Birya Dena & 111 others v Francis Kahindi Kalume [2022] KEELC 1251 (KLR)", Case Analysis (2022). ELC (Mombasa) — representative suit instituted 19th December 2013 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1251/eng@2022-02-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.